RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00341
BRANCH OF SERVICE:  Army	BOARD DATE:  20140917
SEPARATION DATE:  20050926

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard SPC/E-4 (11B/Infantryman) medically separated for bilateral hearing deficit.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3/H3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “sleep apnea requiring CPAP” condition as “not meeting retention standards” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions, acute stress disorder, bilateral sensorineural hearing loss and borderline hypertension as meeting retention standards.  The Informal PEB (IPEB) adjudicated sleep apnea as unfitting and not service aggravated.  The remaining conditions were determined to be not unfitting.  The CI non-concurred with the IPEB findings and recommendations, thus requested and was granted a Formal PEB (FPEB).  The FPEB reviewed the IPEB proceedings, reaffirmed the bilateral hearing deficit as unfitting and rated as 0%.  The CI concurred with FPEB findings, made no further appeals and was medically separated.

CI CONTENTION:  “Initial VA rating decision service connected sleep apnea at the 50% from the time of discharge and Stress disorder at 70% in 2008.  We request the board review both conditions.  We believe PTSD should been addressed during the initial board review due to combat status and exposure to IEDs.” 

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The ratings for the unfitting bilateral hearing deficit and not unfitting sleep apnea conditions are addressed below.  

The contended not unfitting acute stress disorder condition is also reviewed below; in accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed or eliminated during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change or elimination, fitness determination, and rating of any unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.  

The Board acknowledges the CI’s contention for ratings of his sleep apnea and stress disorder conditions which were determined to be not unfitting by the PEB.  Service disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with military service, a Service disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

RATING COMPARISON:

Service FPEB – Dated 20050803	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hearing Deficit	6100	0%	Bilateral Hearing Loss	6100	NSC	No Show	
Acute Stress Disorder	Not Unfitting	Posttraumatic Stress Disorder	9411	NSC	No Show	
Sleep Apnea 		Not Unfitting	Sleep Apnea	6354	NSC	No Show	
Other x 0 (in Scope)	Other x 0	
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20060315 & 20090116 (most proximate to date of separation)

ANALYSIS SUMMARY:

Bilateral Hearing Deficit Condition.  Review of STR showed that the CI complained of hearing loss after exposure to two improvised explosive devices (IEDs) while deployed in 2004, although he reported there were multiple instances of acoustic trauma.  He was advised that because of his reduced audiometric thresholds, he was a candidate to wear binaural amplification and should wear hearing protection when around hazardous noise levels.

The Board directed its attention to the coding and rating recommendation for the hearing loss condition.  The audiology examination findings dated 16 December 2004 (10 months prior to separation) showed that the CI’s right ear average hearing loss was 24 Decibel (dB) at the puretone thresholds of 1000-4000 Hertz (Hz) with 100% speech discrimination; and the left ear average hearing loss was 25dB at the puretone thresholds of 1000-4000Hz with 96% speech discrimination.  Based on this data, application of VASRD §4.85 yields a 0% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the sensorineural hearing loss condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that acute stress disorder and sleep apnea were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Acute Stress Disorder.  Following exposure to two IED attacks in June 2004, in which he and his colleagues were injured, the CI developed combat stress symptoms.  He was evaluated in theater by a Combat Stress Control unit, but was subsequently medically evacuated for sleep apnea in July 2004.  In August 2004, an Army staff psychiatrist’s memorandum for the record listed the diagnosis of acute stress disorder and considered that it was amenable to treatment and was expected to resolve with time.  At a civilian psychiatric evaluation dated 15 September 2004 (12 months prior to separation) the CI reported being confronted by events that involved actual or threatened serious injury and threat to his physical integrity and others.  He endorsed flashbacks, recurrent images of dramatic events and being easily startled by noises.  He was taking two psychotropic medications and denied psychiatric hospitalization.  A mental status exam (MSE) was unremarkable.  The examiner assigned an Axis I diagnosis of acute stress disorder and a Global Assessment of Functioning (GAF) of 40, connoting major impairment in several areas.  Over the next 5 months, follow-up visits reported future career plans and his newly married status.  He still experienced irritability, flashbacks and hypervigilance, but nightmares and marked avoidance receded.  GAF scores ranged from 50 to 55 (moderate to serious symptoms or impairment).  At a brief visit in November 2004 the diagnosis was changed, without explanation, to posttraumatic stress disorder (PTSD).  At the separation physical examination dated 5 February 2005 (8 months prior to separation), the CI stated he was being treated for PTSD and depression.  On the profiling section of the DD Form 2808, the examiner listed a diagnosis of PTSD; an initial S3 profile in this section was changed on 15 February 2005 to S1.  

During the MEB narrative summary (NARSUM) exam on 1 March 2005 (7 months prior to separation) the CI reported that associates and his wife commented on his irritability.  The examiner listed a diagnosis of acute stress disorder which was considered to meet retention standards.  The commander’s statement on 28 April 2005 (5 months prior to separation) reported that the CI was not working in his primary MOS, but that he “has done an outstanding job.”  He was noted to be “very competent and assertive in all tasks, always exceeding the standards…” and was “truly an asset to this organization.”  At the MEB psychiatry consultation dated 11 July 2005 (3 months prior to separation), the CI was still taking two psychotropic medications.  He complained of some ongoing problems with irritability and decreased short-term memory, but otherwise his mood was pretty neutral.  He disliked crowds, driving on back roads and driving under overpasses; and had increased situational awareness which was manifested by scanning areas and checking exits.  He reported that he thought about IED attacks during his waking hours, but nightmares about IEDs had pretty much gone away.  Panic attacks occurred occasionally.  A MSE was unremarkable except for anxious affect.  It was noted that the diagnosis of acute stress disorder had been changed to PTSD by the civilian psychiatrist during a 15 minute encounter in November 2004, but without explanation.  Because the MEB psychiatrist was not able to elicit an initial response to the traumatic events that was characteristic of PTSD, an Axis I diagnosis of anxiety disorder (not otherwise specified) was assigned.  The GAF was about 60 (moderate symptoms or impairment) and impairment for further military duty was considered to be moderate.  The psychiatrist opined that the CI had received suboptimal treatment and might be expected to have problems returning to duty in a deployed environment; and that likely improvement would occur with more focused treatment.  The CI was deemed to meet retention criteria and to not need a permanent profile restriction.

The Board considered the appropriateness of changes in the MH diagnoses, PEB fitness determination and a disability rating recommendation in accordance with VASRD §4.130.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES.  Because the separation examiner listed a diagnosis of PTSD, but the PEB and psychiatric addendum specified acute stress reaction and anxiety disorder, the Board concluded the MH diagnosis was changed in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board noted that the MEB psychiatrist considered the PTSD criteria in the context of a MH record review and direct interview and appropriately concluded that the formal diagnosis of PTSD was not supported at that time.  The Board therefore concluded the diagnosis of anxiety disorder at the time of separation was correct.  The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  Board members agreed that the preponderance of evidence of the record reflected non-limiting symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB.  At no time after return from deployment did he require a psychiatric hospitalization or emergency care.  The MH condition was not permanently profiled or implicated in the commander’s statement and was not judged to fail retention standards by the MEB psychiatrist or the MEB.  There was no indication that a MH problem limited his ability to perform his job.  All Board members agreed that the evidence of the record reflected minimal occupational and social impairment in the period of time leading into the MEB, and therefore concluded the anxiety disorder condition was not unfitting at the time of separation and not subject to service disability rating.

Sleep Apnea.  A sleep study was performed in 2001 to evaluate complaints of loud snoring and daytime sleepiness, but it did not show evidence of a significant sleep apnea disorder.  However, due to observed sleeping difficulties while deployed to Iraq in 2004, the CI was medically evacuated from theater for further assessment and treatment.  A sleep study in October 2004 showed severe obstructive sleep apnea (OSA); application of continuous positive airway pressure (CPAP) therapy corrected abnormal sleep measures, including oxygen desaturation.  The permanent P3 profile for sleep apnea stated that the CI could not be deployed to a field environment where electricity was not available for CPAP and that he could not drive a military vehicle.  The NARSUM examiner (7 months prior to separation), reported that CPAP alleviated sleep apnea symptoms and opined that the condition failed to meet retention standards.  The commander’s statement (5 months prior to separation), reported that the CI “has done an outstanding job.”  He was noted to be “very competent and assertive in all tasks, always exceeding the standards…” and was “truly an asset to this organization.”  At the MEB psychiatric evaluation (3 months prior to separation), the CI reported that “sleep with the CPAP is pretty good with about 7 hours of sleep.”  The Board considered whether sleep apnea was unfitting for continued military service.  While the condition was profiled, it was not implicated in the commander’s statement.  

The Board noted that sleep apnea is not routinely considered unfitting solely on the basis of field operational impediments to the use of CPAP.  There is no evidence in this case that OSA was associated with any functional impairment that was not corrected by CPAP.  Accordingly, members concurred that the PEB’s fitness determination was reasonable; and, after due deliberation, the Board finds insufficient cause to recommend a change in the PEB adjudication of the OSA condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  In the matter of the bilateral hearing deficit condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended acute stress disorder and sleep apnea conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20150004776 (PD201400341)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA